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What is Justice?

While reading a favorite blog of mine (Doug Phillips), I stumbled across a link to an article discussing the President’s pick for Supreme Court nominee, Sonia Sotomayor. It got me thinking about the particular values of justice, and the consequences of “empathy” in judicial decisions. What is justice? Are there any invariant rules to its proper execution? The Judicial Oath words justice this way:

“I, __________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (name of position) under the Constitution and laws of the United States. So help me God” (reference here).

This oath seems to define impartiality as equal right to poor and rich, etc. However, the President’s criterion for justice is best described by this statement from his campaign (which he has since reiterated):

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor… And that’s the criteria by which I’m going to be selecting my judges” (reference here).

The difference here is between “being” and “feeling.” The oath defines justice as an action or a state of being; namely, no person should be exalted over another in a case. Empathy is a feeling, and is vague in its ability to inform us of what true justice looks like. Note, the campaign quote does not tell us how that “empathy” will be acted out on the court. If anything, “empathy” for particular groups of people would seem to lead justices to partial and emotional decisions, rather than decisions based on objective facts about innocence or guilt. Surely, our liberty is directly influenced by our concept of justice, and the restraint of evil in society. If we muff justice, we muff liberty. We cannot afford to have an unclear “feeling” define such a fundamental concept in society.

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2 thoughts on “What is Justice?”

There is no disagreement from me that empathy is a poor guideline for constitutional decision making. Nor do I believe that our “malleable” Constitution should be the plaything of the justices. But it doesn’t follow from these points that it’s a cardinal judicial sin to upset federal or state legislation. Nor does some implicit, overarching judicial norm of “strict construction” condemn most forms of judicial intervention.

That narrow conception of the judicial role may be congenial to conservatives who think democratic outcomes almost always have greater legitimacy than judicial ones. As a libertarian, however, I do not share that judgment. The Founders well understood the risk of faction, which could allow simple majorities to restrict the liberties or confiscate the property of their political opponents. […]

However unhappy conservatives and libertarians might be with her nomination, they won’t put a dent in her confirmation prospects in the Senate and they won’t alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

‘I couldn’t quite figure out what you meant by “But it doesn’t follow from these points that it’s a cardinal judicial sin to upset federal or state legislation. Nor does some implicit, overarching judicial norm of ‘strict construction’ condemn most forms of judicial intervention.” Would you also mind reiterating the “narrow conception of the judicial role?’

Show him the instruments!

Other than the first paragraph my post was an excerpt from the Forbes piece cited, and I think Epstein explains in this passage:

“A faithful interpretation of those clauses that limit government power in broad terms–e.g. the Bill of Rights–cannot be read to hold that judicial review only comes into play in the most extreme cases.

“Alas, the inescapable truth is that constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint. The public outcry over the Supreme Court’s rendering of the “public use” language in Kelo v. City of New London was for its failure to use plain constitutional language to stop the egregious decision of New London to condemn Ms. Kelo’s land literally for no reason at all. If that’s judicial activism, then words have lost all meaning.”

Epstein is really a philosopher in that he goes to first principles on these things. Is the value we seek to preserve “No Judicial Activism?” It is not. The value is liberty. In Kelo, some judicial activism would have been welcome. Chanting “No Activism!” in this instance is an intellectual short-cut.

BTW, elsewhere philosopher Epstein explores the “sociobiological” reasons that liberty is best for human societies, and distills it down to three things: